Clause 6 - criminal penalties

Legislative and Regulatory Reform Bill – in a Public Bill Committee at 11:00 am on 7 March 2006.

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Photo of Christopher Chope Christopher Chope Conservative, Christchurch 11:00, 7 March 2006

I beg to move amendment No. 71, in clause 6, page 3, line 23, leave out from ‘offence’ to end of line 29 and insert

‘or increase the penalty for an existing offence.’.

Photo of Martin Caton Martin Caton Labour, Gower

With this it will be convenient to discuss the following amendments:

No. 63, in clause 6, page 3, line 25, leave out paragraph (a).

No. 72, in clause 6, page 3, line 30, leave out subsection (2).

No. 73, in clause 6, page 3, line 35, leave out subsection (3).

No. 74, in clause 6, page 4, line 3, leave out subsection (4).

No. 75, in clause 6, page 4, line 9, leave out subsection (5).

No. 64, in clause 6, page 4, line 15, leave out subsection (6).

No. 76, in clause 6, page 4, leave out lines 17 and 18.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

The amendment would introduce some necessary safeguards and prevent the powers under the Bill being used to create new offences or to increase penalties for existing offences. Responding to the previous debate, the Minister said that as a result of the extra powers being taken by the Government it was reasonable that there should be an increase in safeguards, and he cited clause 5 as such a safeguard. I submit that clause 6 should be drafted on a similar basis to clause 5 covering all increases in penalties for existing offences and the creation of new offences irrespective of the maximum penalty for imprisonment.

This subject was referred to on Second Reading by the hon. Member for Wolverhampton, South-West (Rob Marris) and the Committee is less effective because of the hon. Gentleman’s absence from the Government Back Benches. [Interruption.] As the hon. Member for Cambridge said, he was not selected to serve on the Committee, and I wonder why.

The hon. Member for Wolverhampton, South-West said, in effect, that under the clause as drafted it would be possible for the Bill to be used to increase the maximum penalty for driving while using a mobile phone to 18 months’ imprisonment. It would be possible to incorporate minimum sentences of imprisonment up to two years. The Government have not often taken the route of minimum sentences but it would be possible to introduce a series of minimum sentences as long as they did not exceed two years. Those powers are far too extensive. If we believe in the liberty of the subject why should we not make it incumbent on any Government wanting to increase the penalties or to create new offences to do so using primary legislation?

This morning on the radio there was a bit of what I suppose was Government spin suggesting that the law relating to rape was inadequately defined because not enough people who were charged were convicted, and that the Government might wish to change the system relating to the criminal law covering rape.

If the Government think that when people are charged under the existing law and acquitted it is all rather embarrassing, what hope is there if they decide to amend what they would describe as anomalies or shortcomings using the accelerated procedure? It is impossible to conceive of situations in which any person who was subject to new criminal penalties or offences would not as a result suffer the loss of

“any right or freedom which that person might reasonably expect to continue to exercise.”

I quote from one of the preconditions in clause 3. That short point does not need to be laboured in debate, but I hope that the Minister will explain why he wishes to take these extensive powers and why he is not making criminal offences and criminal penalties subject to the same safeguards as he applied on taxation in clause 5.

Photo of Martin Caton Martin Caton Labour, Gower

After we have discussed this group of amendments I hope we will have tackled the substance of the clause and therefore will not need a separate stand part debate. I ask hon. Members to remember that when they contribute to the debate on the amendments.

Photo of Mark Harper Mark Harper Shadow Minister (Defence)

The explanatory notes to the Bill try to pretend that the limits are the same as they were in the 2001 Act. That is true, but it neglects the fact that the scope of the Bill is much wider than the Act and the restrictions do not apply to the extent that the order implements Law Commission recommendations. We hope that the Minister will comment in detail on the amendments tabled by the hon. Member for Christchurch, which tests the logic of having the restrictions in the Bill, and the reasons for it.

My hon. Friend the Member for North-East Hertfordshire and I tabled probing amendment No. 63 to give the Minister and others an opportunity to comment on the scope to which creating indictable offences, albeit with less than a term of imprisonment exceeding two years, is appropriate and on whether the Bill should really just tackle offences that are amenable to summary conviction.

I shall concentrate most on amendment Nos. 64 and 76 and the Law Commission recommendations. The working programme of the Law Commission on criminal law is considering two very important and controversial matters: provisional proposals for reforming the law of murder—it invites comments on that consultation paper by 13 April—and codifying the general principles of criminal law, considering corporate liability, corporate manslaughter, the law relating to children and incapacity mental disorder. Consultation on those matters will be published during 2006.

Those are both incredibly important areas of law. It seems that any proposals in that regard would, almost by definition, be controversial, especially those affecting the law of murder. They would therefore merit being debated in full along the lines of primary legislation and usual parliamentary procedure. Despite what the Minister said about not wishing to use the Bill for non-controversial measures, it does not say that in the Bill. If the Law Commission made recommendations on those controversial and other areas in the future, there is a danger under the Bill that changes could be made to them by order. We would prefer amendment No. 76 or amendment No. 64 to be implemented as they would remove the Law Commission’s aspects of the proposals. Will the Minister focus on that point and decide either to accept the amendments or draft the Bill a little tighter so that it excludes specifically some controversial policies?

Photo of David Howarth David Howarth Shadow Minister, Office of the Deputy Prime Minister 11:15, 7 March 2006

The hon. Member for Forest of Dean (Mr. Harper) referred to two of the points that I was about to make, so I shall not detain the Committee long. To reinforce his argument about the Law Commission, I have every confidence that my former academic colleagues on the commission and their judicial colleagues would not put forward proposals that would be fundamentally destructive to human rights.

Photo of Oliver Heald Oliver Heald Shadow Secretary of State (Justice), Shadow Secretary of State

I just wondered if the hon. Gentleman was referring to Stuart Bridge, who happened to be in my chambers for a period.

Photo of David Howarth David Howarth Shadow Minister, Office of the Deputy Prime Minister

Yes, indeed. Among others, I was referring to Mr. Bridge. I am sure that they would not propose measures that would fundamentally violate human rights. Nevertheless, the question is whether their proposal be exempt from the limitation in the Bill in respect of creating new criminal offences punishable   by more than two years’ imprisonment. I cannot see any reason to exempt their proposals from the general limitation of what can be done by order.

My second point concerns why the hon. Gentleman is so worried that the restriction is simply reproduced in the form that it took in the 2001 Act. I am sure that the Minister will say that there is hardly any difference between the Bill and the Act, and ask why worries are being expressed. The difference is that the scope of the Bill is so much wider than the scope of the 2001 Act. We are dealing not only with deregulatory measures that reduce burdens, but with measures that can change any legislation. That is why it is not adequate simply to reproduce the terms of the 2001 Act.

Photo of David Heath David Heath Shadow Leader of the House of Commons, Shadow Spokesperson (Cabinet Office)

I want to reinforce briefly the point that was amply made about the excellent amendment No. 76. There can be no argument that imprisonment beyond two years should in any circumstances be exempt from full parliamentary examination and scrutiny. We cannot substitute the opinion of the Law Commission, however well informed, for the will of Parliament on the liberty of citizens of this country. It is extraordinary that the exemption was even suggested for the areas that we discussing.

Photo of Mark Harper Mark Harper Shadow Minister (Defence)

The hon. Gentleman makes a good point. One matter that worries me and which has been mentioned is the danger of giving a wide exemption for recommendations from the Law Commission that would enable controversial measures to be used. That would change the nature of the Law Commission. The Government would be tempted to change its membership and use it as a method by which to legislate in some areas where they could not get measures through the Houses of Parliament.

Photo of David Heath David Heath Shadow Leader of the House of Commons, Shadow Spokesperson (Cabinet Office)

That point is well made. I am always wary of government by expert, however eminent the experts. That is why we have a Parliament. Members are elected to this place to protect the interest of the citizen against the expert who knows best. That is why such protection is so important. It is inconsistent for there to be a general protection in the clause, but for it not to apply to the most likely source of a change in criminal sanction.

My final point is that there is no argument on expedition on this point. There is no good argument that there are not legislative vehicles available to change criminal law. We have a criminal justice Bill and an immigration and nationality Bill every year. We have no difficulty in finding Home Office legislation.

Photo of David Heath David Heath Shadow Leader of the House of Commons, Shadow Spokesperson (Cabinet Office)

Indeed. The police, having been reformed, apparently need reform again this year. One of our difficulties with the queue of criminal justice legislation is that we often amend one piece of legislation with another before the first has even been implemented. That is explicit in the clause’s reference to sections of the Criminal Justice Act 2003, which were a matter of great urgency at the time. I remember staying up until the early hours of the morning to   consider those provisions, yet we find in 2006 that sections have not yet been implemented. So much for urgency and expedition. We have available vehicles for change, and I do not believe that the Minister needs a power to put people in prison for longer than two years through an Order in Council. I hope that he will reflect on that.

Photo of Jim Murphy Jim Murphy Parliamentary Under-Secretary (Cabinet Office)

As hon. Members will know, clause 6 places another limitation on the order-making power in clause 1. It sets the maximum penalties both for any new offence created by an order and for any existing offence for which an order increases the penalty. It maintains the limits in the 2001 Act. However, those limits applied only when the order-making power was used to create a new criminal offence. The limits in clause 6 will apply also when the penalty for an existing offence is increased. Parliament has already considered the limits in the 2001 Act, and as a result they will be amended by the Criminal Justice Act 2003 when the relevant sections of that Act are commenced. The drafting of clause 6 therefore reflects the fact that the limits will remain lower until the relevant parts of the Criminal Justice Act 2003 come into force.

The maximum penalty that can be imposed when an offender is convicted on indictment is two years’ imprisonment. The maximum for an offender convicted summarily is 51 weeks for a summary offence in England and Wales, 12 months for an either way offence in England and Wales, six months in Scotland and Northern Ireland, or a fine up to level five on the standard scale. However, until section 281(5) of the 2003 Act comes into force, the order must provide that for any summary offence committed in England and Wales before that date, any reference to the maximum of 51 weeks must be read as a reference to the current maximum of six months; that is subsection (4).

Until the day on which section 154(1) of the 2003 Act comes into force, the order must provide that for any offence triable either way in England and Wales committed before that day, any reference to the maximum of 12 months must be read as a reference to the current maximum of six months; that is subsection (5). As I have said, that complex provision reflects the position under the 2001 Act following the amendments made by the Criminal Justice Act 2003 that, as has been alluded to, have yet to be commenced.

Subsection (1) does not apply to provisions implementing Law Commission recommendations, about which I will speak in a moment. Such recommendations are based on expert consideration by the Law Commission and extensive consultation. To limit the commission’s ability to make recommendations on appropriate penalty levels would mean that more Law Commission recommendations would not be delivered by order. Due to the pressure on the legislative programme, the proposals might not reach enactment for several years. The Committee has already discussed the fact that, on average, Law Commission recommendations—the ones that the Government actually accept—take seven and a half years to implement.

Amendment No. 63 would mean that orders could create or increase penalties only for offences punishable on summary conviction and not for those punishable on indictment. Crimes tried on indictment will have limits of two years, and the amendment would remove that protection.

Amendments Nos. 71 to 75 would prevent orders from creating new criminal offences or increasing the penalties for existing ones. A number of safeguards prevent orders from inappropriately reforming the law regarding criminal penalties. Orders are subject to public consultation, must meet the preconditions in clause 3 and are scrutinised by the parliamentary Committees. The Government have also made a commitment not to deliver any highly controversial proposals by order.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

Will the Minister guarantee that minimum sentences will not be introduced under the powers where none exist at the moment, and that retroactive changes will not be made in the criminal law?

Photo of Jim Murphy Jim Murphy Parliamentary Under-Secretary (Cabinet Office)

I shall come to the points that the hon. Gentleman made earlier as well. The most important point is that the limits on criminal penalties in clause 6 have been carried over from the 2001 Act, and there is no evidence that the limits in that Act are too broad or too high. I think the Committee will accept that the hon. Gentleman has not sought to make the case that the powers in the 2001 Act have not operated appropriately, or that there has been concern about the Act. We cannot therefore accept the amendments.

The fire safety RRO amended legislation relating to criminal offences, such as penalties for failing to comply with important fire safety duties. The order modernised the fire safety regime and delivered significant benefits. Amendments Nos. 63 and 71 to 75 could prevent orders from delivering beneficial proposals and are unnecessary, as existing safeguards will prevent orders from delivering inappropriate reforms relating to criminal penalties.

Amendments Nos. 64 and 76 would prevent orders from delivering Law Commission recommendations that would impose criminal penalties above the levels generally imposed by clause 6. Amendment No. 64 goes further, as it would prevent the any orders under clause 1 from merely restating legislation on criminal penalties above those limits. Amendment No. 64 would therefore prohibit orders that would not alter existing criminal penalties but would make the law more accessible and readily understandable by bringing different pieces of legislation together in a single document. That would be an undesirable restriction, and the Government will therefore not accept amendment No. 64.

Amendment No. 76, which was spoken to by the hon. Members for Forest of Dean and for Christchurch, would prevent orders from delivering Law Commission recommendations that would impose criminal penalties above the levels generally imposed by clause 6. That would mean that some well considered and worthwhile reforms recommended by the Law Commission after detailed research and   extensive consultation could be implemented only by primary legislation. However, I believe that Law Commission recommendations that include criminal penalties above the levels specified in clause 6 and that are suitable for implementation by order are likely to be rare indeed.

I also believe that where higher penalties are recommended, they might well make the orders highly controversial and therefore inappropriate for delivery by order. I agree to reflect on amendment No. 76, and on that basis I urge the hon. Member for Christchurch to withdraw it.

Photo of Mark Harper Mark Harper Shadow Minister (Defence) 11:30, 7 March 2006

I welcome the Minister’s commitment to look at the matter again. He said just before he concluded that any well considered Law Commission recommendations involving a greater penalty would be rare. If so, to legislate for them in one of the annual Home Office Bills—or, indeed, in criminal law more generally—would not be an incredible burden. That is a serious point that the Minister might want to consider. Given the current Administration and the focus on home affairs legislation, there is effectively an annual Home Office Bill. He might want to talk to his colleagues about that, and it might be sensible to effectively reserve a slot in those Bills for some of the Law Commission proposals. They are all pretty weighty Bills, and that would be a sensible legislative improvement that he might want to discuss with his colleagues in the Home Office.

Photo of Jim Murphy Jim Murphy Parliamentary Under-Secretary (Cabinet Office)

I give way to the hon. Member for Somerton and Frome (Mr. Heath), and then I will conclude.

Photo of David Heath David Heath Shadow Leader of the House of Commons, Shadow Spokesperson (Cabinet Office)

I am grateful, although the hon. Member for Forest of Dean expressed most of what I was going to say in his short speech or intervention.

I am grateful to the Minister for agreeing to reconsider the matter. He might want to reflect on what he said earlier—praying in aid the apparent delay in implementation of Law Commission proposals. It is inconceivable that a Law Commission proposal that increases criminal sanctions and deals therefore with criminal law and serious offences cannot fall within the scope of a criminal justice Bill and is better done by order. There is therefore no harm to the Government’s legislative programme. The delay—if there is a delay—is entirely in the Government’s hands because they have had the legislative opportunity every year to introduce Law Commission proposals in the area of criminal justice. I accept that there might be an argument in civil law, but not in criminal law because there is always an appropriate Bill.

Photo of Jim Murphy Jim Murphy Parliamentary Under-Secretary (Cabinet Office)

In responding to the short speech or long intervention by the hon. Member for Forest of Dean—he made his point, as have others in respect of the Law Commission recommendations—I reiterate that there is a generally accepted difficulty. Across   Governments and time, securing legislative space to implement non-controversial Law Commission proposals—

Photo of Jim Murphy Jim Murphy Parliamentary Under-Secretary (Cabinet Office)

I am about to wind up.

There is a general acceptance that, across time, there is a delay in implementing the important Law Commission recommendations. On average, the ones that this Government accept have waited seven and a half years for implementation. Opposition Members make their own suggestions for how that could be remedied.

I shall say by way of a conclusion, that after giving careful consideration and thought to amendment No. 76 in the name of the hon. Member for Christchurch, I have given an undertaking to reflect on the matter in order to overcome the genuine concerns that have been expressed. I urge him therefore to withdraw the amendment.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

Some progress might have been made as a result of the amendments that we are debating, but at the fringes only of my submission, because amendment No. 76 would prevent legislation from going through the process by which a maximum penalty is increased beyond two years in prison. That is very much at the extreme end. Even then, instead of accepting the amendment, the Minister has said that he will go away and consider the matter. Obviously I accept that relatively speaking that is good news.

However, the Minister has not responded directly to my request for an undertaking that the powers under clause 6 will not be used to impose retrospective criminal legislation, which is why I sought to intervene. I shall give way to the Minister if he has been prompted to the extent that he can give such an undertaking. Nor has he dealt with the question whether the powers under clause 4 could be used to introduce a series of minimum penalties for offences, thereby removing the courts’ discretion on what level of penalty they should impose. Minimum penalties are being used more often now—for example, for parking and speeding offences—and they are causing an enormous amount of anguish among our constituents. It could be argued that it would be administratively much simpler if all that had to be done was tick a box and send the bill to the person who had committed the offence. There would be no problem about the courts having to consider mitigation, the circumstances of the case or even the particular circumstances of the individual.

I seek an undertaking that the clause will not be used to introduce minimum penalties, but I wait more in hope than expectation for the Minister to seek to intervene to give us those pretty fundamental and basic assurances. I should have thought that that would have been very much in line with his reasoning for almost accepting amendment No. 76. Surely it would be controversial, and an order would not be able to make progress, if we were talking about making retrospective changes in the criminal law or increases in penalties.

Photo of Jim Murphy Jim Murphy Parliamentary Under-Secretary (Cabinet Office)

I do not often seek to intervene, but the hon. Gentleman has tempted me with specific questions. I am not sure that he is going to be pleased with my response on minimum penalties. In a sense it would be appropriate to fix minimum limits for regulatory offences on such matters as health and safety or environmental protection. However, they would have to go through all the procedures of which we have already spoken in respect of protections, vetoes and so on. The limits on retrospectivity in the context of criminal law are appropriately to be found in the Human Rights Act 1998. I hope that I have reassured the hon. Gentleman. [Interruption.]

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

As the hon. Member for Cambridge said from a sedentary position, the human rights legislation could be changed under the Bill.

I am grateful to the Minister for intervening, but I am disappointed to hear that he would use the Bill to introduce a series of minimum sentences. Minimum sentences would effectively remove the courts’ ability to judge cases on their merits and to consider mitigating circumstances. I find that an extremely worrying development. We have at least teased that out of the Minister, but I hope that the Committee will think that it strengthens the argument in favour of removing the power to increase penalties or introduce new criminal offences.

The Minister says that the safeguards are the same as those found in the 2001 Act, but it is puerile to argue that because the Act was circumscribed by the need to find a reduction in burden. That has been taken away from the Bill, as have the safeguards in relation to the super-affirmative procedure, and so on. The Minister may say, “It was all right under the 2001 Act, so it is all right under the Bill,” but that would not be borne out by reasonable men when considering the matter.

The best thing to do is to test the will of the Committee on amendment No. 71. I accept that if the matter were to be the subject of a further Government amendment, it would be some progress, but it would be very small progress in proportion to the great increase in Government powers and their ability to legislate without going through the proper parliamentary processes.

Question put, That the amendment be made:—

The Committee divided: Ayes 7, Noes 8.

Division number 10 Nimrod Review — Statement — Clause 6 - criminal penalties

Aye: 6 MPs

No: 7 MPs

Aye: A-Z by last name

No: A-Z by last name

NOES

Question accordingly negatived.

Clause 6 ordered to stand part of the Bill.